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Tay Been Ong v Hu Nan and VII Pctrade Pte Ltd - [2013] SGDC 5 (8 January 2013)

8 January 2013

District Judge Loo Ngan Chor:

1 The two defendants are dissatisfied with my decision, given with brief reasons, to award interlocutory judgment against them and have appealed. ^{[note: ]} I now provide my full reasons. In doing so, I propose to only ventilate the considerations which led to my decision as set out in my “findings” below and would not be looking into every point pursued by the parties, particularly the defence.

2 At about 1am on 25th April 2011, the plaintiff was riding his motor cycle FY 1506 Z in a motor cycle lane at the Woodlands Checkpoint on his way home from work. Home was in Johor Bahru. He was then a bus captain in the employ of SBS Transit. Having tendered his resignation to his employer, he was serving out his resignation notice.

3 He said that as he went past a bend in the motor cycle lane, he saw two to three metal poles lying on the lane. He avoided the first metal pole but struck the second. While his affidavit of evidence-in-chief (“AEIC”) does not expressly say so, it was pleaded, and the defendants implicitly accepted, that the plaintiff fell off his motor cycle and was injured. ^{[note: i]}

4 The defendants had also implicitly accepted that the plaintiff’s case was based on the first defendant having knocked down the poles while he drove in the opposite direction, these poles having been members of a road divider that separated a motor car lane the first defendant was on from the motor cycle lane. This happened when, arising from the defendants’ counsel’s objections to the plaintiff’s AEIC, I had struck out a number of statements in the plaintiff’s AEIC including the phrase in the first sentence of paragraph 5, which read “which had been knocked into my lane by the 1st defendant.” and no further objection was raised in regard to the plaintiff not having made out this aspect of his case. ^{[note: ii]}

5 The first defendant was driving a van GV 6707 G belonging to the second defendant. He had a passenger (Guan Yu) who did not testify. The first defendant’s AEIC admitted that he had hit the road divider and that he and Guan sat in the van for some minutes. He said that some more minutes later, while the police were questioning him at the van, the police rushed over to assist a fallen motor cyclist (the plaintiff). The first defendant went on to say in his AEIC that the plaintiff had contributed to his accident by failing to see the ^{[note: iii]} “road divider which has fallen on the road for some time before he arrived;”.

6 The first defendant went on to state in-chief that, through Guan and another person, he had paid the plaintiff $100 to settle the plaintiff’s claims which had been “completely extinguished.” ^{[note: iv]} The defendants’ closing submissions were silent on this point, which may be taken to have been dropped.

7 Central to the defence of the second defendant was the point that the first defendant, along with Mr Jin Zhi Hua, the second defendant’s managing director, was out on a social occasion unconnected with the second defendant’s business. Mr Jin’s AEIC referred to himself as the managing director. ^{[note: v]} (Parenthetically as nothing turned on this, I note that the defence ^{[note: vi]} stated that the first defendant was the second defendant’s “sole director”.)

8 Mr Jin’s AEIC identified the friends whom he and the first defendant met as Guan, Fan Hua and Gao Min. He said that they had had dinner at a restaurant in Block 161 Geylang Road from about 10pm until midnight. He maintained that the dinner “was a social one and was not connected with the business of the 2nd defendant in any way.” All five of them then left in the second defendant’s van which he drove “as [he] did not have any drinks.” Fan and Gao were dropped off at Tampines. After that, Mr Jin said he drove home to Block 20 George’s Road where the first defendant and Guan rested for a while and later left. According to the first defendant, in cross-examination, he lived in Lakeside ^{[note: vii]} but had taken a wrong road and found himself at Woodlands Checkpoint. ^{[note: viii]}

9 The first defendant’s police report in respect of the incident was made on 27th April 2011. ^{[note: ix]} In it, he stated that he “hit the divider. [He] was drunk. Parts of the divider from the collision flew to the other lane. There was a motorcycle (FV 1506 Z) might tried ( sic ) to avoid from hitting the metals ( sic ) parts and fell down. The rider was injured. That’s all.” Under cross-examination, the first defendant admitted making the report but qualified the admission by saying that he was not actually privy to the latter half of the report, it having been told him by the police. ^{[note: x]} In re-examination, he stated that the part of the report from “parts of the divider” on were matters of which he really did not have personal knowledge as they were told him by the police. ^{[note: xi]}

10 In cross-examination, the first defendant admitted that he had pleaded guilty to and was thus convicted of two charges premised on a statement of facts related to the incident. ^{[note: xii]} One charge pertained to drink driving under s67 (1)(b) of the Road Traffic Act (“the Act”) (Cap 276). ^{[note: xiii]} The second charge was for driving without due care and attention under s65 (a) of the Act. ^{[note: xiv]} The second charge, in its material parts, read that the first defendant had driven the van “without due care and attention, to wit, by failing to have proper control of your vehicle, caused ( sic ) it to collide onto the centre divider, the impact caused ( sic ) the pole to swing towards the motorcycle lane and caused ( sic ) a rider to lose control of his motorcycle and fell while avoiding the pole...”

11 Paragraph 3 of the statement of facts stated that “On 25th of April 2011 at about 1.22am, the defendant ... collided into the center ( sic ) divider. As a result of the impact, the pole dismounted from the center ( sic ) divider and flung to the motor cycle lane. At that time, the rider of motorcycle FY 1506 Z, who was riding along the motor cycle lane, rode past the pole and skidded.” ^{[note: xv]}

12 There was some oral evidence either way about whether there was a bend ahead of the fallen metal poles.

13 The gravamen of the second charge goes to the heart of the issue before me in regard to the liability of the first defendant. The question before me in that connection was whether the first defendant had caused the dislodgement of the metal poles onto the motor cycle lane at the Woodlands Checkpoint, which caused the plaintiff’s accident and consequent injuries.

14 I proceed first to consider the legal principles pertaining to the plaintiff’s deploying the first defendant’s earlier guilty plea in a criminal prosecution as proof of his liability in the case before me.

15 In my view, s45A of the Evidence Act is triggered and the first defendant’s plea of guilt constitutes proof of the plaintiff’s case against him.

Admissions not conclusive proof but may estop

31. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions in this Act.

Relevance of convictions and acquittals

45A.

—(1) Without prejudice to sections 42, 43, 44 and 45, the fact that a person has been convicted or acquitted of an offence by or before any court in Singapore shall be admissible in evidence for the purpose of proving, where relevant to any issue in the proceedings, that he committed (or, as the case may be, did not commit) that offence, whether or not he is a party to the proceedings; and where he was convicted, whether he was so convicted upon a plea of guilty or otherwise.

[8/96]

(2) A conviction referred to in subsection (1) is relevant and admissible unless —

( a ) it is subject to review or appeal that has not yet been determined;

( b ) it has been quashed or set aside; or

( c ) a pardon has been given in respect of it.

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(3) A person proved to have been convicted of an offence under this section shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.

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(4) Any conviction or acquittal admissible under this section may be proved by a certificate of conviction or acquittal, signed by the Registrar of the Supreme Court or the Registrar of the Subordinate Courts, as the case may be, giving the substance and effect of the charge and of the conviction or acquittal.

[8/96]

(5) Where relevant, any document containing details of the information, complaint, charge, agreed statement of facts or record of proceedings on which the person in question is convicted shall be admissible in evidence.

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(6) The method of proving a conviction or acquittal under this section shall be in addition to any other authorised manner of proving a conviction or acquittal.

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(7) In any criminal proceedings, this section shall be subject to any written law or any other rule of law to the effect that a conviction shall not be admissible to prove a tendency or disposition on the part of the accused to commit the kind of offence with which he has been charged.

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(8) In this section, “Registrar” has the meaning assigned to it in the Supreme Court of Judicature Act (Cap. 322) and the Subordinate Courts Act (Cap. 321), respectively.

[8/96]

16 In Ong Bee Nah v Won Siew Wan (Yong Thian Choy, third party) [2005] 2 SLR(R) 455, Andrew Phang JC (as his Honour then was) provided an explanation of the considerations apropos s45A of the Evidence Act at [59-87]. At [62, 63] and in regard to authorities which opined that such prior convictions carried great weight or that they carried no weight at all ( queare , vis an accomplice), his Honour said this:

62 In my view, neither approach is, with respect, wholly correct. Each captures a facet of the holistic approach that ought to be adopted. In the practical sphere of application, in addition to shifting the burden of proof, the conviction concerned will almost certainly figure in the court's mind in at least a minimally substantive way. This is consistent with Lord Denning MR's view. However, to the extent that such evidence will not be conclusive in and of itself, Buckley LJ was also correct in pointing out that the court can - and must - take into account evidence to the contrary that might prevail at the end of the day. I am thus of the view, as already alluded to above, that both Lord Denning MR's and Buckley LJ's approaches reflect the realism and common sense that are necessary in aiding the court in arriving at a result that must, in the final analysis, be closely linked to the specific facts and circumstances in question. Technically, though, one could state that the adoption of such an approach does, in effect, endorse Lord Denning MR's views inasmuch as it still gives weight to the evidence concerned. But one ought not to be too overly concerned with technicalities, in my view. In any event, on the facts of the present case, it is clear (as we shall see) that even if one adopted the more favourable approach towards the defendant as embodied in the views of Buckley LJ in the Stupple case, the defendant would still fail in discharging the onus of proof.

63 Indeed, in fairness to the defendant, I now proceed to state as well as analyse various general arguments and/or factors that might be invoked in her favour. One is the suggestion that in a running-down case, the probative value stemming from evidence of a conviction of a driving offence might be of little or no value (see per North P in the New Zealand Court of Appeal decision of Jorgensen v News Media (Auckland) Limited ([49] supra ) at 976). However, everything depends, of course, upon the specific facts themselves. I see no reason in this case, for example, why the evidence of (especially) the Statement of Facts should be of limited value. On the contrary, since they have a bearing on a crucial part of the factual matrix, viz whether or not it was she or the third party who had in fact beaten the traffic lights, I would have thought that such evidence would indeed be of very significant value.

17 I shall now deal with the persuasiveness of the first defendant’s plea of guilt as proof in the case before me.

18 There are two levels at which the second charge impacted the question before me. At the general level, the first defendant pleaded guilty to having been, in effect, negligent, in hitting the road divider and dislodging it, resulting in injury to the plaintiff. The first defendant’s unqualified plea of guilt necessarily encompassed the detail in the charge relating to how his offence caused the plaintiff’s mishap.

19 There was also a specific level, ie, the issue of whether the plaintiff ran over a dislodged metal pole and fell or whether he fell in trying to avoid a fallen metal pole. This was a matter on which the basis for that part of the charge would have been useful. Although Station Inspector Richard Khoo, the investigating officer, testified as a plaintiff’s witness, and stated that the dislodged divider landed on the motor cycle lane resulting in the plaintiff’s mishap, ^{[note: xvi]} neither counsel clarified with SI Khoo the issue whether the mishap was a product of a riding over a metal pole or an attempt to avoid it. ^{[note: xvii]}

20 In respect of the mismatch between the issue whether the plaintiff’s motor cycle fell because it ran over a dislodged metal pole or in attempting to avoid it, in fact, the plaintiff’s evidence had been that he avoided the first metal pole but hit the second and fell. Importantly, the defendants’ counsel did not take up the pleading point. As importantly, this discrepant feature was not adverted to at all. In Main-Line Corporate Holdings Ltd v United Overseas Bank Ltd and another (First Currency Choice Pte Ltd, third party) [2007] 1 SLR(R) 1021, Justice Tay Yong Kwang had to this to say: the Federal Court of Malaysia in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at 342 that

[W]here there is no pleaded case of estoppel, but there is let in, without any objection, a body of evidence to support the plea, and argument is directed upon the point, it is the bounden duty of a court to consider the evidence and the submissions and come to a decision on the issue. It is no answer, in such circumstances, to say that the point was not pleaded..

(emphasis added)

21 On this score, I did believe the plaintiff on this point, ie, that he avoided one metal pole and ran over the next, resulting in his fall. As to how the police formed a different view on the matter was not an issue explored before me, owing, I would infer, to counsel’s perceiving it as a slight difference given that the predominant feature in this connection was whether the first defendant’s earlier accident dislodged the divider (comprising the metal poles) and caused the plaintiff’s accident rather than how exactly the accident happened.

22 I turn to the first defendant’s perspective. He advanced an explanation in respect of part of the police report. However, he accepted the parts of his report which stated that he had hit the divider and was drunk. By contrast to his attempting to explain the damning part of his police report, the first defendant offered no explanation in respect of his guilty plea to the charges and statement of facts which assimilated those of his police report. Moreover, he did not tell me that he pleaded guilty to the charges out of convenience or for any extraneous reasons. In my view, his reticence in the latter connection spoke to his acceptance of the factual matrix that constituted the charges and the statement of facts.

In my view, the first defendant’s guilty plea provided very persuasive proof of his liability in the case before me.

23 I should also add this. Separately from the first defendant’s guilty plea, I did not believe that he did not in fact know of the metal poles having become dislodged. My reasons were these. He claimed to have sat for some minutes in the van after his accident. It is a matter of common experience in a traffic accident that the persons involved would check out the resulting damage. All the more so when he claimed to have sat in the van for some minutes when, even if he did not leave it to make a physical inspection of whether he damaged any public property, he would have seen that the metal poles had come away and landed on the motor cycle lane. Even if he did not, I would infer that this was because he was in an extreme state of intoxication.

24 The second defendant urged that I should not hold it vicariously liable for the first defendant’s negligence. The basis for this submission was that the occasion on which the first defendant and Mr Jin, the managing director of the first defendant, had set out and led by some removes to the plaintiff’s claim, was a purely social one unconnected to any business of the second defendant. With respect, I disagreed.

25 In Chiang Choong Loong v The personal representative of Chua Meng Hwee, deceased and another [2010] SGDC 398, the plaintiff was a taxi driver. The deceased was allowed the use of the defendant’s van outside of work hours. It was a long week end when, in a state of drunkenness, the deceased drove the van into the rear of the plaintiff’s taxi causing serious damage to both the taxi and the plaintiff. I found the second defendant employer vicariously liable.

26 My decision was reversed by the High Court in an appeal limited to my finding against the second defendant, in DCA 57 of 2010. His Honour did not deliver a judgment. I am not able to find the relevant minute sheet in the EFS record. Hence, I do not know why I was reversed. I hasten to add, however, that it is clear that my decision in the circumstances of that case was found to be wrong. So be it.

27 In that case, I had referred to a number of authorities including Lister v Hesley Hall Ltd [2001] UKHL 22, a decision of the House of Lords, which established the close connection test in dealing with the question when an employer might properly be found to be vicariously liable for an employee’s tort, be the tort one of negligence or intention.

28 In Chiang Choong Loong , my pervasive concern in finding the employer vicariously liable had been the prospects of recovery by the plaintiff if the employer were left off the hook in circumstances where it had given the employee carte blanche to use the van. Be the appeal outcome what it may, my underlying concern remains important. It is well-known that it has become very common on Singapore roads for employees to have the use of their employers’ vehicles, usually vans or heavy vehicles, outside of working hours. A recent newspaper article spoke of heavy vehicles causing offence by being parked overnight on public roads. The employers’ calculations, whether they be savings in parking charges in land-scarce Singapore or to provide employees with a certain convenience, are beside the point. In respect of personal injuries in traffic accidents, compulsory insurance would no doubt be a balm. However, where an insurer has correctly repudiated liability on an insurance policy, and the damage is limited to damage to a plaintiff’s vehicle, the issue of enhancing the prospects of recovery becomes important. This aspect has to be resolved with a certain consistency of principle across the factual permutations in which an employee has the use of the employer’s vehicle. That is not to suggest that I am advocating that the question of whether vicarious liability should be affixed to an errant employer is or should be a pure question of law. I am not. In my humble opinion, the outcome in any case depends on an analysis of the surrounding facts, anchored in legal principle (which may require further exposition by the Supreme Court owing to what I labelled tensions in the strands in Chiang Choong Loong ). This is much a question of mixed fact and law bearing in mind the policy considerations that informed the Asia Pacific Breweries case.

29 In Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and another and another appeal [2011] SGCA 22, a decision of the Court of Appeal, which was decided after my decision in Chiang Choong Loong and the appeal, approved of the close connection test in Lister . Importantly, his Honour Chief Justice Chan Sek Keong, writing for the court, had this to say at [75-80]:

75 In our view, the "close connection" test is, as Bokhary PJ commented in Ming An , "an intellectually satisfying and practical criterion" (at [19]) for determining whether vicarious liability should be imposed on an employer for "all torts committed by an employee during an unauthorised course of conduct, whether intentional wrongdoing or mere inadvertence is involved" (at [25]). This is because the test "imposes vicarious liability when, but only when, it would be fair and just to do so" (at [19]) and, moreover, "provides a workable concept, namely[,] a sufficiently close connection, for determining in each case whether [imposing vicarious liability] would be fair and just" (at [19]). This test requires the court to "openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of 'scope of employment' and 'mode of conduct'" ( per McLachlin J in Bazley v Curry ([69] supra ) at [41]). What the court has to do in each case is to examine all the relevant circumstances - including policy considerations - and determine whether it would be fair and just to impose vicarious liability on the employer. For instance, it is difficult to argue, on policy grounds, that victim compensation should not prevail in cases involving defenceless and vulnerable victims, such as young children who have been sexually abused by employees of welfare homes, however innocent the employer might be. But, the same policy consideration may not be valid in the case of an international bank which is the victim of a commercial fraud.

76 In John Doe v Bennett ([70] supra ) at [20] (reproduced at [70] above), McLachlin CJ highlighted two policy considerations underlying the doctrine of vicarious liability, namely: (a) effective compensation for the victim; and (b) deterrence of future harm by encouraging the employer to take steps to reduce the risk of similar harm in future.

77 Vis-à-vis the first of the aforesaid policy considerations, we are of the view that an innocent victim of an employee's tort should, under ordinary circumstances, be compensated. In this regard, the employer is usually the person best placed and most able to provide effective compensation to the victim. In our view, making the employer vicariously liable is not only a practical solution, but also fair and just. After all, a person who employs another to advance his own interests and thereby creates a risk of his employee committing a tort should bear responsibility for any adverse consequences resulting therefrom. This view is buttressed by the consideration that the employer may redistribute the cost of providing compensation for his employee's torts through mechanisms such as insurance.

78 We should at the same time point out, however, that the objective of victim compensation rests on the implicit premise that the victim of the tort is not at fault for the tort, or at least bears less fault for the tort than the party who is morally responsible for the tort ("the blameworthy party"). The main touchstone of legal liability at common law is usually, and justifiably, moral culpability. Where possible, the law endeavours to make the blameworthy party bear, to a commensurate extent, the financial consequences of his wrongdoing. Vicarious liability, in contrast, operates regardless of whether there is any fault on the part of the person who is ultimately made to provide compensation for the blameworthy party's wrongdoing ("the ultimate defendant"). More specifically, vicarious liability only comes into play when the law is unable, for practical reasons, to make the blameworthy party bear the financial costs of the tort. As a form of "strict" liability in the sense of liability imposed without necessarily requiring any fault on the ultimate defendant's part, vicarious liability is an anomaly in the common law. For this reason, vicarious liability can only be justified if the victim of the tort is himself not at fault, or is less at fault than the blameworthy party and/or the ultimate defendant. It is only in a situation where the primary device for imposing liability - ie , fault - is incapable of providing the victim with effective compensation from the blameworthy party that resort to other factors to assign liability (and, thus, provide effective victim compensation) may be justified. In other words, a precondition for the imposition of vicarious liability is that the victim seeking compensation should either be without fault himself, or be less at fault than the blameworthy party and/or the ultimate defendant; otherwise, the policy of victim compensation as a justification for imposing vicarious liability loses much of its moral force.

79 Turning now to the second policy consideration highlighted by McLachlin CJ at [20] of John Doe v Bennett , viz , deterrence of future harm, this rests on the premise that penalising an employer for his employees' torts will provide him with an incentive to take steps to reduce the incidence of accidents and tortious behaviour by his employees . As McLachlin J astutely noted in Bazley v Curry (at [33]):

Beyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.

80 In our view, the aforesaid policy consideration, which is aimed at promoting efficiency in business enterprises through deterrence, is a legitimate one. However, like victim compensation, it rests on the fundamental premise that the employer is best placed, relative to everybody else, to manage the risks of his business enterprise and prevent wrongdoing from occurring. In many cases, this premise may hold true. Employers are often well positioned to stem the occurrence of accidents as they have the ability to control their employees (see Fleming James Jr, "Vicarious Liability" (1953-1954) 28 Tul L Rev 161 at 168). However, this is not always the case. In some situations, the person best placed, or at least better placed, to prevent the tort may well be the victim himself or a third party. This may occur, for example, where an independent contractor or some other third party independent of the employer supplies all the equipment required to perform a job which is part and parcel of the employer's business enterprise. In yet other cases, the type of tort that occurs is, realistically speaking, uncontrollable and, therefore, not amenable to deterrence. This is particularly relevant to torts committed in the course of excessively risky business enterprises, spur-of-the-moment torts and intentional torts. In such situations, it may well be possible to find that the employer has done all that is reasonable to deter the tort and yet has failed to prevent the commission of the tort. In such situations, deterrence as a justification for imposing vicarious liability loses much of its force.

(emphasis in bold and underlinings are mine)

30 My concern at [29] above has been validated. In addition, there is the further recognised need to forge a principle in regard cases of the ilk before me, which would address the question of how employers’ behaviour might be influenced by a legal policy tailored to mould employers’ behaviour towards a responsible attitude touching on the use of their vehicles by employees.

31 The circumstances in which an employee uses an employer’s vehicle, beyond the strict compass of what he is employed to do, are varied; numerous cases attest to this. In Chiang Choong Loong , the first defendant was allowed the use of the employer’s vehicle beyond work. In this instance, the second defendant claimed that the night out was purely social and unconnected with the business of the second defendant. The three friends were not called to testify. No explanation was offered why the second defendant’s van was used rather than a vehicle belonging to either director, if he owned one, or public transport. The first defendant was a director of the second defendant. Mr Jin, the second defendant’s managing director, knew of the first defendant’s drunken state, which explained why he admittedly drove the van in the leg of the trip that took two friends and him home. But, he then allowed the first defendant to drive the van.

32 In this instance, it would serve well to recall the Salmond test of a “course of employment”. At [65] of the Asia Pacific Breweries case , the test was stated thus:

This test, as currently restated in R F V Heuston & R A Buckley, Salmond and Heuston on the Law of Torts (Sweet & Maxwell, 21st Ed, 1996) (“ Salmond and Heuston ”) at p 443, rests on the principle that:

A master is not responsible for a wrongful act done by his servant unless it is done in the course of [the servant’s] employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.

33 It seems patent to me, in the unusual circumstances of this case, that the offending act of driving the van even fell within the first limb of the Salmond test. Cadit quaestio

34 The learned defence counsel referred me to Hilton v Thomas Burton (Rhodes) and another [1961] 1 WLR 705, a decision of Diplock J. It was suggested that in Chiang Choong Loong , I had “approved” of the Hilton case and explained it on the basis that it could have been viewed as a chattel-loan situation. ^{[note: xviii]} With respect to counsel and particularly Diplock J, whom I consider one of the great English jurists of the 20th century, I am not in any position to approve of the Hilton case, given that it was a district court in which I sat and the operation of stare decisis . In the light of the Asia Pacific Breweries case, and the Lister and Ming An Insurance Co (HK) Ltd v Ritz-Carlton Ltd [2002] 3 HKLRD 844 cases approved by the Court of Appeal, the Hilton decision may be in need of a review. For the sake of fullness, I set out the head notes of the Hilton case and an extract from Diplock J’s judgment:

The plaintiff's husband sustained fatal injuries when a van owned by the first defendants and driven by the second defendant, in which the deceased was a passenger, crashed after failing to negotiate a bend in the road. The deceased was the foreman, and the second defendant a member, of a gang of workmen employed by the first defendants on demolition works at a site some 30 miles from the first defendants' premises, being conveyed from those premises to the site and back by the van involved in the accident. The first defendants permitted the workmen to take their lunch and other necessary refreshment with them or to get it at some café or public house, as they chose, and were willing for them to have the use of the van for this or any other reasonable purpose of their own.

On the afternoon of the accident the deceased, the second defendant and another member of the gang, who had visited a nearby public house at mid-day for refreshments, taking the view that they had done enough work to pass muster, and to fill in the remaining hours of their employment for the day, set out to have tea at a café some seven or eight miles from the site. The normal driver was among those remaining at the site, and, accordingly, the second defendant drove, he, like any other servant with a driving licence, being permitted to do so by the first defendants. When they had almost reached the café they realised it was late, and turned back to collect the rest of the gang from the site for the return journey to the first defendants' premises. It was on this journey from the café to the site that the accident took place:-

Held , that although the second defendant was driving the van with the permission of his employers, the first defendants, he was not at the time doing that which he was employed to do and, accordingly, the first defendants were not vicariously liable for his negligent driving.

Per Diplock J at pages 708-709:

However that may be, I have got to look at the realities of the situation. What were the circumstances, and what was the purpose for which this journey to the café and back was taken. Looking at the realities of the situation, it seems to me to be clear beyond a peradventure that what happened was this: the four men having taken the view that they had done enough work to pass muster, were filling in the rest of their time until their hours of work had come to an end. They decided to go to the café, after sitting and chatting on the job for some time, to fill in the time until they could go home and draw their pay. This seems to me to be a plain case of what, in the old cases, was sometimes called going out on a frolic of their own. It had most tragic consequences; but it does not seem to me that it is possible to hold (though I would like to do so if I could), looking at the realities of the situation, that on the course of that journey the second defendant was doing anything that he was employed to do. It may be he was using his master's vehicle with his master's permission; but as Higbid v. R. C. Hamnett Ltd.7 shows, that is not enough. The true test is, was he doing something that he was employed to do? I think on the facts of this case, he plainly was not.

35 I had no difficulty, in these circumstances, in finding the second defendant, qua employer, vicariously liable for the first defendant’s negligence.

36 I now address the defendants’ point that I should assign a reduction in recovery against the plaintiff for his alleged contributory negligence in failing to notice the metal poles on the motor cycle lane.

37 I was not able to make a finding about whether there was a bend ahead of the fallen metal poles. The plaintiff did say that there was a bend that obstructed his view. However, the absence or presence of a bend there should have been available in the record of the authorities responsible for the Woodlands Checkpoint but such a record was not produced before me. In any case, this did not matter in the light of my considerations in the paragraphs that follow.

38 In Ang Kuang Hoe v Chia Chor Yew [2004] SGHC 29, Justice Belinda Ang had this to say at [34]:

34 The principles relating to the apportionment of responsibility are clearly established in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. The same principles have been applied equally to traffic accidents. The five members of the High Court of Australia said at 532-533:

A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201.

…

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] TASStRp 11; [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

39 The question of contributory negligence called for my sense of what was right in the circumstances of this case. The first defendant, as I have found (at [24] above), knew that the metal poles had come dislodged and were on the motor cycle lane.

40 The motor cycle lane at the Woodlands Checkpoint, in the usual way, and over the time that the plaintiff made his daily commute between home and work and home, is and would have been free of obstruction. Broken-off metal poles would not reasonably have been expected there. The first defendant brought about that unusual danger and made no effort to have them removed. In these circumstances, I was not prepared to find that the plaintiff in any way contributed to the accident so that there would be a discount from the damages he should recover.

41 Pope v Fraser and Southern Rolling and Wire Mills, Limited (1938) TLR 55, 324, was a case in nuisance. The defendant’s servant had driven a lorry laden with sulphuric acid. Unknown to him, sulphuric acid ran onto the road because a carboy was cracked. Further down the road, when he became aware of the discharge, he attended to cleaning his own lorry instead of returning to the scene to keep other road-users from harm. The plaintiff came along, thought the acid was water, rode through it, skidded, fell and was burned by the acid. With respect, I agree with Justice Humphreys when he said this at page 325:

... it was his [the defendant’s servant’s] clear duty to go back at once and see if any substantial amount of acid had fallen on to the road and, if this was the case, to warn traffic not to proceed. Instead of doing that, his interest centred in his lorry.... and went on washing his lorry.

He (his Lordship) would be very sorry to attach any moral blame to the driver, who was no doubt very much upset when he found out afterwards what had occurred, but he was of the opinion that the plaintiff had established that his injuries were due to the negligence and nuisance on the highway for which the driver was responsible.

42 For the reasons set out above, I found both defendants liable to pay the plaintiff’s damages to be assessed in full, with costs and interest reserved.

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^{[note: ]} NE 7 ^th December 2012

^{[note: i]} Plaintiff’s AEIC paras 4, 5, BOA3; Statement of claim paras 4,6 BP3,4

^{[note: ii]} DCS

^{[note: iii]} 1 ^st defendant’s AEIC para 11; his AEIC at BOA6-9

^{[note: iv]} 1 ^st defendant’s AEIC paras 9,10, BOA8

^{[note: v]} Mr Jin’s AEIC affirmed 26 ^th July 2012, BOA 14-16

^{[note: vi]} Defence para 3(a), BP27

^{[note: vii]} This would be in the Jurong or Chinese Garden vicinity – NE 35-36,

^{[note: viii]} NE30, 27 ^th August 2012

^{[note: ix]} 1AB1-3

^{[note: x]} NE32, 27 ^th August 2012

^{[note: xi]} NE35, 27 ^th August 2012

^{[note: xii]} NE33-34, 27 ^th August 2012

^{[note: xiii]} 3AB5

^{[note: xiv]} 3AB6

^{[note: xv]} 3AB3

^{[note: xvi]} NE13, 27 ^th August 2012

^{[note: xvii]} NE 7-13, 27 ^th August 2012

^{[note: xviii]} DCS [66]

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